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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

NOT REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

DATE: 11/8/21

 

CASE NOS: 34386/2020

34387/2020

 

In the matter between:

 

COMPENSATION SOLUTIONS (PTY) LTD                              Plaintiff

 

and

 

THE COMPENSATION COMMISSIONER                                 First Defendant

 

DIRECTOR-GENERAL OF THE DEPARTMENT

OF LABOUR OF THE NATIONAL GOVERNMENT

OF THE REPUBLIC OF SOUTH AFRICA                                  Second Defendant

 

COIDLink (PTY) LTD                                                                  Amicus Curiae

 

JUDGMENT

 

THE COURT (FOURIE J, MALI J and MAKHOBA J):

 

[1]          This matter concerns the determination of legal issues that have continually featured in many of the matters initiated between the parties. These issues are the subject of a significant number of matters involving summary judgment proceedings that have already been dealt with by this Division and which will in future also have to be dealt with. It was therefore decided by the Judge President to issue a Directive in terms of section 14(1)(a) of the Superior Courts Act, No 10 of 2013, read with section 173 of the Constitution. The Directive was issued for the purpose of constituting a Full Court to sit as a Court of first instance to hear, determine and resolve the legal issues to which we shall refer in due course.

 

BACKGROUND

 

[2]          The plaintiff conducts the business of factoring medical accounts from medical service providers that are payable by the defendants from the Compensation Fund established in terms of section 15 of the Compensation for Occupational Injuries and Diseases Act, No 130 of 1993 as amended ("COIDA").

 

[3]          The plaintiff takes cession of all right, title and interest in and to the medical accounts in terms of written agreements concluded between the plaintiff and the medical service providers. The plaintiff and the relevant service provider then notify the first defendant of such cession by way of a written instruction to change the bank account into which that service provider's accounts are paid, to an account controlled by the plaintiff.

 

[4]          The plaintiff, in conducting such business, submits claims for payment of medical accounts so factored to the first defendant who is required in terms of COIDA to process and validate such medical accounts and to effect payment of the validated medical accounts to the plaintiff from the annual contributions collected by the first defendant from employers in terms of COIDA.

 

[5]          The dispute between the parties arose from the alleged failure by the defendants to fulfil their duties and obligations in terms of COIDA and more particularly the non-payment by the first defendant of claims submitted by the plaintiff relating to factored medical accounts.

 

[6]          The plaintiff contends that the defendants unnecessarily defend summary judgment proceedings, despite there being orders and judgments in cases where summary judgment had been granted in favour of the plaintiff, and in the process, delaying the finalisation of these matters.

 

[7]          The defendants argue that they had been granted leave to defend in some of the matters already adjudicated upon and therefore regard the defences that they raise as permissible and valid. The defendants also contend that the plaintiff's entitlement to receive and benefit from the Compensation Fund is the subject of a contested interpretation of COIDA.

 

JUDGMENTS AND ORDERS ALREADY GRANTED

 

[8]          As indicated above, in some of the cases between the parties judgments and orders have already been granted. Save for a few of those judgments and orders, it is not necessary to refer to all of them.

 

[9]          On 31 July 2009 in Case No: 35047/2009 the parties came to an agreement regarding the process that shall be followed by the first defendant in relation to medical aid provided to employees by medical practitioners as envisaged in COIDA. On the same day this agreement was made an order of Court. Copies of the agreement and the order of Court are attached to the particulars of claim as annexures "POC1" and "POC2". The relevant part reads as follows:

 

" 1.      The First Respondent shall process medical accounts submitted to him in relation to medical aid provided to employees by medical practitioners as envisaged in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 ('the Act') within a reasonable time from the submission of such accounts.

 

2.            In respect of the submission of a medical account relating to a claim which has been accepted (i.e. first respondent has accepted liability for the claim), and in respect of a medical account submitted after such acceptance, a reasonable time for the First Respondent to process, validate and effect payment of such validated medical accounts is within 76 days of the acceptance of a claim, or where this occurs after acceptance of the claim, the date of submission of such accounts. For avoidance of doubt, it is recorded that in respect of medical accounts submitted before acceptance of a claim, the 75 days will be calculated from the date of acceptance of the claim.

 

3.            The First Respondent shall process this backlog of medical accounts referred to in Annexure JL12, at page 88 of the Record in this application by 30 October 2009.

 

4.            The First Respondent shall pay the Applicant interest at the current legal rate of interest (being 15,5 per cent per annum) on all currently outstanding medical accounts to which the letter of demand dated 25 March 2009 (record, pages 88-9) relates, from such date of demand to the date of payment of each such respective account.

 

5.            The Applicant will submit a CD to the First Respondent on a fortnightly basis containing a list of claims, and the First Respondent shall thereupon provide the status of each claim, and where the claim has been accepted, the date of such acceptance, to the Applicant within 7 (seven) days of receipt of the CD.

 

6.            The parties record their mutual commitment to a functional process in relation to claims and medical accounts submitted by the Applicant, and a good working relationship in that regard. Accordingly to resolve any queries, disputes or discrepancies in relation to medical accounts submitted for payment, the Applicant and the First Respondent (or his designated representatives) shall meet weekly at the latter's Port Elizabeth offices.

 

7.            This agreement shall apply equally to the Second Respondent as the party principally responsible for compliance with the obligations and performance of the functions set out in the Act.

 

8.         The Respondents shall pay the party and party costs of this application, as taxed or agreed, including the costs of two counsel.

 

9.         The Respondents consent to this agreement being made an order of court.

 

10.       The parties accept the above undertakings in settlement of the above application."

 

[10]       During 2020 in Case No: 30147/2018 the respondents (acting as the applicants) launched an application in terms whereof an order was sought declaring that the settlement agreement which was made an order of Court on 31 July 2009 ("POC1" and "POC2" referred to above) was limited to the issues that served before Court on that day and did not deal with the issues that would arise in future. On 17 July 2020 Teffo J dismissed the application by stating, inter alia, the following (par 41):

 

"From a reading of the agreement and the application of the relevant legal principles as set out in the abovementioned authorities, I conclude that the settlement agreement was intended to regulate the litigation relationship between the parties pertaining to the resolution of the backlog of the processing of the claims beyond the issues that were directly before Court. The settlement agreement therefore remains in force and binding on the parties."

 

[11]       Save for an issue regarding the interpretation of the settlement agreement and subsequent order ("POC1" and "POC2"), various other issues have also been raised on the pleadings. Some of these issues were also debated during a case management meeting that was held between the parties' representatives, the Judge President and the then Acting Deputy Judge President on 31 August 2020.

 

[12]       On 7 January 2021 and subsequent to this meeting and further correspondence regarding the issues, the Judge President issued the Directive referred to above. The issues to be determined by this Court have been formulated in this Directive and are also reflected in the amended pleadings between the parties.

 

THE ISSUES

 

[13]       The issues referred to this Court for consideration and adjudication (as redrafted by agreement between the parties) and raised as special pleas, are the following:

 

(a)          Special Plea No 1 - (Annexures "POC1" and "POC2" to the particulars of claim): The issue is whether the agreement and court order contained in these annexures apply only to the accounts that formed the subject matter of that application (Case No: 35047/2009), or whether it also applies to accounts to be submitted in future such as those in these matters?

 

(b)          Special Plea No 2 - (Summons issued prematurely): The issue is whether compliance with the so-called "W.Cl.20" procedure as reflected in the applicable regulations issued pursuant to COIDA is mandatory and a jurisdictional prerequisite to plaintiff proceeding with these actions, and whether non-compliance therewith constitutes a bar to the plaintiff so proceeding?

 

(c)          Special Plea No 3 - (Prohibition of cession): The issue is whether section 32 of COIDA, upon a proper interpretation thereof, prohibits the cession of medical aid accounts as relied upon by the plaintiff by medical service providers to any third party, and specifically the plaintiff?

 

(d)          Special Plea No 4 - (State Liability Act No 20 of 1957): The issue is whether sections 1 and 2 of the State Liability Act is applicable to actions instituted by the plaintiff against the defendants upon the cause of action relied upon in the summonses?

 

(e)          Special Plea No 5 - (Compliance with the Legal Proceedings Against Certain Organs of State Act No 40 of 2002): The issue is whether sections 3 and 5(4) of this Act are applicable to actions instituted by the plaintiff against the defendants upon the cause of action set out in these summonses?

 

(f)           Special Plea No 6 - (Rule 18(4)): The issue is whether the plaintiff has failed to comply with Uniform Rule 18(4) in that there is insufficient particularity given in its particulars of claim in respect of each claim pleaded?

 

(g)          Special Plea No 7 - (Validity of cession agreement): The issue is whether the fact that the plaintiff has not attached each cession agreement referred to in each summons to that summons constitutes a special defence or not, and, if so, whether that fact of not attaching each cession agreement would denude the plaintiff of locus standi in these matters?

 

(h)          Special Plea No 8 - (Magistrate Courts' jurisdiction): The issue is whether the claims contained in annexure "POC3" to each summons are in fact individual claims falling within the jurisdiction of the Magistrate's Court which should not have been instituted in the High Court?

 

[14]       Before the commencement of the hearing the parties agreed that in terms of Rule 33(4) the abovementioned issues should be separated from all other issues raised in the pleadings and that the latter issues should be postponed sine die for another Court to adjudicate (if necessary). Such an order has already been granted. An order was also made authorising the amicus curiae to participate in the hearing on the issues referred to in paragraphs 13(c), (g) and (h) above.

 

[15]       During the hearing the defendants' counsel indicated that the defence raised in the pleadings and which have been formulated in paragraph 13(e) above, has been abandoned. It was also confirmed by counsel that the defendants will not raise this defence in future again.

 

DISCUSSION

 

SPECIAL PLEA NO 1: Are annexures "POC1" and "POC2" only applicable to accounts listed in Case No: 35047/2009?

 

[16]       The plaintiff contends that the agreement and court order contained in annexures "POC1" and "POC2" to each summons are declaratory and mandatory in nature and are applicable also to the future conduct of the defendants in relation to the plaintiff. This agreement and order are not limited to only the accounts referred to in Case No: 35047/2009 , but are also applicable to all future accounts submitted by the plaintiff to the defendants, including those contained in these proceedings. It was also submitted that this issue is res iudicata between the parties, as it has already been decided in various judgments of this Court, more particularly that of Teffo J referred to in paragraph 10 above.

 

[17]       The defendants contend that the agreement and court order apply only to the accounts that formed the subject matter of that application and do not apply to any subsequent accounts. Put differently, the 2009 order had the effect, so the defendants contend, that it was only the medical accounts ceded to the plaintiff which were in existence at that time to which the order refers.

 

[18]       It is common cause between the parties that the accounts listed in annexure "POC3" to the present litigation were not included in the 2009 application (Case No: 35047/2009) and in fact did not even exist then, but arose subsequent thereto. It is also not in dispute that annexure "JL12" referred to in annexure "POC1" (the agreement) was not referred to in the notice of motion of that application, but that it referred to accounts mentioned in a letter of demand that preceded that application.

 

[19]       The main question to be decided is twofold: First, whether the agreement that was made an order of court applies only to the accounts that formed the subject matter of that application (in Case No: 35047/2009), or that it should also regulate the payment of all future accounts submitted by the plaintiff to the defendants? Second, whether the defence of res iudicata, raised by the plaintiff as an answer to this special plea, should be upheld?

 

INTERPRETATION OF THE AGREEMENT

 

[20]       The interpretation of the agreement between the parties (and subsequent court order) is a question of law. The law regarding interpretation has been stated by Wallis JA in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), par 18, as follows:

 

"Interpretation is the process of attributing meaning to the words used in a document , be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective not subjective. A sensible meaning is to be preferred to one that leads to insensible or un-business-like results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or business-like for the words actually used. To do so in regard to a statute or statutory instrument is to cross divide between interpretation and legislation. In a contractual context it is to make a contract for the parties other than the one they in fact made. The 'inevitable point of departure is the language of the provision itself', read in context and having regard to the purpose of the provision and the background to the preparation and production of the document. "

 

[21]      As a starting point, the contents of the agreement should be considered having regard to the context provided by reading all the paragraphs thereof in the light of the document as a whole and the circumstances attendant upon its coming into existence. We shall start by referring to the circumstances surrounding the coming into existence of this agreement.

 

[22]      During June 2009 an urgent application (Case No: 30147/2018) was launched by the plaintiff (as applicant) against the first and second defendants (as respondents). The papers indicate that at some time before the hearing the applicant gave notice of its intention to amend the relief sought in the notice of motion. We were unable to find any indication that this proposed amendment was finalised, either by agreement or by an order of Court. In any event, the difference does not appear to be material for purposes of this discussion. The relief sought in the notice of motion was for a declaratory order. The following relief was applied for (as far as it is relevant):

 

"2.       Declaring that:

 

2.1              the first respondent is required to process medical accounts submitted to him in relation to medical aid provided to employees by medical practitioners, as envisaged in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 ... within a reasonable time from the submission of such accounts ;

 

2.2              in particular, a reasonable time for the first respondent to complete the necessary administrative processes and to effect payment of medical accounts relating to claims under the Act which the first respondent has accepted as falling within the ambit of the Act ('accepted claims) is no longer than sixty (60) days from the date of such acceptance ;

 

2.3              interest is payable, at the same rate as is fixed from time to time by the National Treasury in respect of debts owed by the State, alternatively at the mora interest rate prescribed .. . on all medical accounts relating to accepted claims not paid by the first respondent within 60 days from the date of acceptance of such claims by the first respondent ;

 

3.            Directing the first respondent to notify the applicant of his acceptance of any claim under the Act in respect of which the applicant has submitted a medical account, within seven (7) days of the date of the first respondent's acceptance thereof "

 

[23]       The founding affidavit (signed on 4 June 2009) contains an explanation with regard to, inter alia, the following:

 

(a)          the processing by the first respondent of the applicant's accounts;

 

(b)          the claim-processing delays;

 

(c)          the plaintiff's current debtors' book (i.e. all the outstanding submitted medical accounts);

 

(d)          the backlog;

 

(e)          communication with the first defendant.

 

[24]       Under the heading "Current Debtors' Book" it was explained that at 18 May 2009 the amount of R137 279 608 in medical accounts were outstanding (para 43 and 46). Of this amount:

 

(a)          R78,4 million represented "accepted" claims which had not been paid at all, or had not been paid in full as yet;

 

(b)          R18,7 million represented registered claims that had not been accepted yet;

 

(c)          R28,4 million represented claims for which the applicant had not yet received a registration number;

 

(d)          R11,5 million represented claims for which the applicant had received a registration number but of which the status was unknown;

 

(e)          R0,2 million represented claims that had been repudiated.

 

[25]       Under the heading "The Backlog" it was explained that the total number of unresolved medical accounts at 18 May 2009 were 125 102 (R137 279 608). It was also pointed out that on 26 March 2009 the first defendant had been furnished with a "hard disk drive" containing all the details of the longest­ outstanding medical accounts (in the sum of R78 million). It was further explained that "the applicant submits 5 500 new medical accounts each week" (para 49 and 51).

 

[26]       Under the heading "Communication with the First Respondent" reference was made to annexure "JL12", i.e. a letter of demand dated 26 March 2009. This letter referred to the "digital hard disk drive" which contained a list of medical accounts totalling R78 793 384 as at 18 March 2009 (par 68).

 

[27]       That application was opposed and an answering affidavit was also filed. In the answering affidavit it was pointed out that there is no way in which the Fund is able to process claims within 60 days from the date of acceptance thereof (par 20.2). It receives on average 40 000 claims per day, of which it has the capacity to process only approximately 5 000 per day (par 20.3). In reply it was stated that since the application was launched , there had been no real improvement in the processing of claims.

 

[28]       The overall impression is that the main purpose of that application was to obtain relief with regard to all the outstanding accounts referred to under the heading "Current Debtors' Book" which had by then (June 2009) already been submitted but not finalised. This impression is strengthened by the wording of the relief claimed in the notice of motion (see par 24 above). The following should be emphasised:

 

(a)          in paragraph 2.1 reference is made to "process medical accounts submitted";

 

(b)          in paragraph 2.2 the accounts are qualified by the words "which the first respondent has accepted";

 

(c)          in paragraph 2.3 the interest payable was made applicable to "accepted claims not paid";

 

(d)          in paragraph 3 the relief claimed with regard to notification appears to be limited to those claims "in respect of which the applicant has submitted a medical account".

 

[29]       It should be pointed out that neither the notice of motion, nor the proposed amended notice of motion (in Case No: 35047/2009) contained a prayer in which reference was made to "future claims" or "claims still to be submitted". The letter of demand in that application ("JL12") also referred to the listing of medical accounts "as at 18 March 2009", i.e. before that application was issued.

 

[30]       However, that is not all. When the loose ends are tied together, the following picture starts to emerge. On 18 May 2009 all the submitted but outstanding medical accounts stood at R137 279 608. Included in this amount were "accepted" claims which had not been paid (or not paid in full), claims that had not yet been accepted and claims for which the plaintiff had not yet received a registration number. Also included in the total amount outstanding (R137 279 608) was the amount of R78 793 384 which had already been outstanding since 18 March 2009 (according to the letter of demand, annexure "JL12"). In addition to this, and taking into account the evidence, it is reasonable to expect, on the probabilities, that further new claims between 18 May 2009 and 31 July 2009 (when the agreement was entered into), would also have been submitted (on average 5 500 each week which equals approximately 49 000 new claims).

 

[31]       Taking into account the abovementioned circumstances we shall now consider the agreement that was made an order of Court (annexures "POC1" and "POC2"). We shall follow an objective process in an attempt to find a sensible meaning and business-like result without substituting what we regard as reasonable, sensible or business-like for the words actually used.

 

[32]       We shall first consider the document as a whole. The structure of the agreement appears to be the following: First, it refers to the first respondent's (first defendant's) obligation to process medical accounts. Second, it makes provision for a reasonable time within which the first respondent should process, validate and effect payment of medical accounts. Third, it makes provision for the processing of the backlog of medical accounts referred to in annexure "JL12". Fourth, the subject of interest payable is addressed. Fifth, it provides for the submission of a CD on a fortnightly basis containing a list of claims. Finally, it records the parties' mutual commitment to a functional process in relation to claims and medical accounts. This structure itself, standing alone, does not provide a clear answer to the issue to be determined.

 

[33]       Consideration must now be given to the language used, the context and the apparent purpose for which this agreement was entered into. The wording of paragraph 1 appears to be the same as that of paragraph 2.1 of the relief sought in Case No: 35047/2009. This paragraph also refers to the process of "medical accounts submitted".

 

[34]       The subject addressed in paragraph 2 of the agreement, i.e. a reasonable time, appears to be the same as that addressed in paragraph 2.2 of the relief that was sought in Case No: 35047/2009. There is a difference in the wording but in this paragraph of the agreement reference is again made to a claim "which has been accepted" and in respect of a medical account "submitted after such acceptance ".

 

[35]       The reference in paragraph 3 of the agreement to the processing of the "backlog" of medical accounts referred to in annexure "JL12", is clearly a reference to medical accounts to the value of R78 792 384 "as at 18 March 2009", i.e. before the parties entered into the agreement on 31 July 2009.

 

[36]       Paragraph 4 of the agreement stipulates interest to be paid. This was also the idea in paragraph 2.3 of the application in Case No: 30147/2018. However, in paragraph 4 of the agreement it is pertinently stated that interest shall be paid "on all currently outstanding medical accounts" with regard to the letter of demand (Record, pp 88-89), i.e. annexure "JL12".

 

[37]       The reference in paragraph 5 to a CD that will be submitted seems to convey the same idea as was already expressed in annexure "JL12". In that document (the letter of demand) reference was also made to a "digital hard disk drive which contains a listing of medical accounts (totalling R78 792 384) ... as at 18 March 2009" and which was apparently submitted with the letter of demand.

 

[38]       The further reference in paragraph 5 to a CD that will be submitted on a "fortnightly basis" is with regard to "a list of claims". The first respondent (first defendant) shall then provide "the status of each claim" with regard to this list. The "status of each claim" apparently refers to whether or not the claim has been accepted (as stated in paragraph 5). How would the defendants be able to determine the status of these claims if only a list is provided? This implies that medical accounts with regard to this "list of claims" should by then already have been submitted. This inference is also strengthened by the short period of only 7 (seven) days within which the defendants must provide information regarding the status of each claim, and where it has been accepted, the date of such acceptance. It is difficult to reconcile the wording of this paragraph and the short period of only 7 (seven) days with an implied reference to future medical accounts and claims which were not yet in existence when this agreement was entered into.

 

[39]       Paragraph 6 of the agreement appears to be the concluding paragraph of the agreement as a whole. It records the parties' mutual commitment to a functional process in relation to claims and medical accounts "submitted by the applicant" and to resolve "queries and disputes" in relation to medical accounts "submitted for payment". The plan was to "meet weekly". Again, taking into account the wording and context of this paragraph, it is difficult to imagine that the parties had in mind weekly meetings with regard to the processing of future medical accounts and claims still to be submitted after 31 July 2009. If such an interpretation were to be applied it will mean that meetings would have to be held in future indefinitely - ad infinitum - every week, as opposed to a system where such meetings were to be held only with regard to claims and problems which had by then already existed and identified, in an attempt to finalise those claims.

 

[40]       Taking into account that by then R78,4 million represented "accepted" claims which had not been paid at all, or had not been paid in full, R18,7 million represented registered claims that had not been accepted, R28,4 million represented claims for which the applicant had not received a registration number and R11,5 million represented claims for which the applicant had received a registration number, but of which the status was unknown, the latter approach seems to be more business-like and sensible. Put differently, taking into account all the problems with regard to outstanding accounts, it seems that the parties had a lot to discuss with regard to those claims which had by then already been submitted. It therefore appears that weekly meetings would fit the purpose of finalising these outstanding claims rather to try and also regulate the unknown future. This, in our view, is the more sensible and business-like interpretation.

 

[41]       Paragraph 10 is also important. It clearly states that the parties accepted "the above undertakings in settlement of the above application" (our emphasis). We have already pointed out that the main purpose of that application was, in our view, to obtain relief with regard to outstanding accounts which had by then (July 2009) already been submitted, but not finalised. This makes it difficult to conceive, taking into account the wording and context of the agreement, that the parties would, all of a sudden, and for no apparent reason, also deal with the processing of new claims not yet in existence, i.e. "future claims".

 

[42]       Nowhere in the agreement is there a reference to these "future claims" or "future medical accounts to be submitted" or "claims still to be submitted " or " medical accounts and claims to be submitted after this agreement" or "claims which are still to be ceded to the plaintiff' or claims to be submitted " hereafter" or just " new claims". They (the legal representatives) had all these ordinary words and phrases at their disposal, and yet none of them was incorporated into the agreement. The obvious question is, why not? No answer has been given. Furthermore, if that was the intention of the parties, why did they not say so? Again, no answer has been given. And, also, no other explanation has been given in this regard to assist us. On the contrary, the agreement refers all the way through to "medical accounts submitted" (over and over again repeated in par 1, 2, and 6 of the agreement) and a claim "which has been accepted" and interest to be paid on all "currently outstanding medical accounts" and medical accounts "submitted for payment".

 

[43]       It was argued by counsel for the plaintiff (with reference to a judgment of Coetzee AJ dated 29 August 2019 in Case No: 84089/2018) that the procedures referred to in paragraphs 2 and 5 of the agreement would have been redundant if the agreement only intended to regulate "the backlogged claims". It should therefore be accepted, so it was contended, that the agreement should be interpreted to also regulate the processing of claims after 2009, i.e. future claims.

 

[44]       The short answer to this argument is the following: The agreement does not intend to regulate only "the backlogged claims", but also all the other claims which had already by then been submitted. And, no doubt, there were many of them. The backlog referred to in the agreement (par 3 thereof) only relates to the medical accounts referred to in annexure "JL12". The outstanding amount for this backlog "as at 18 March 2009" was R78 793 384. It is obvious that the parties did not intend to only address this amount when they entered into the settlement agreement. The outstanding balance of R58 486 224 (R137 279 608 - R78 793 384) after 18 March 2009, as well as the processing of new claims submitted between 18 May and 31 July 2009 (at the rate of approximately 5 500 each week) also had to be taken into account. What is the capital value of all these latter claims? We don't know. Is that not why they inserted paragraphs 2 and 5, as well as all the other paragraphs, to regulate the processing and payment of a// claims (not only "the backlogged claims' ) which had by then already been submitted? That seems to be the logical conclusion. Put differently, the parties attempted to deal with all outstanding claims up and until 31 July 2009 when the agreement was entered into.

 

[45]       Counsel for the plaintiff also referred us to the case of Compensation Solutions (Pty) Ltd v Compensation Commissioner (072/2015) [2016] ZASCA 59 (13 April 2016) where it was declared by the Supreme Court of Appeal that the first respondent was in contempt of paragraphs 1, 2, 5 and 6 of the order of 31 July 2009 under case number 35047/2009 ("POC1" read with "POC2"). It was contended that if that Court only referred to a closed or limited list of claims, the first respondent would not have been found to be in contempt of Court. That appeal, so it was submitted, did not deal "with (claims) under the 2009 application, but (with claims) in 2014" in respect of which the first respondent still had to comply with the provisions of the 2009 order, but which he failed to do. In support of this submission counsel also relied on the following dictum (par 9) of the judgment:

 

''After filing of the replying affidavit the parties concluded yet another detailed agreement on the future conduct of their dealings, which was also made an order of Court, in terms of which they agreed ...". (emphasis as indicated by counsel).

 

[46]       It was pointed out in that case that a mere two months after the settlement order, the commissioner had failed to comply with his obligations in terms of its provisions. The appellant's (plaintiff in this matter) demand for a meeting in terms of paragraph 6 of the order also went unanswered. This prompted the plaintiff (as appellant) to launch two successive contempt proceedings against the commissioner, in November 2009 and in February 2010, seeking a declaratory order that he was in wilful contempt of the settlement order.

 

[47]       After the filing of the replying affidavit the parties concluded another detailed agreement on the future conduct of their dealings, which was also made an order of Court. There was also no compliance with this order either. This led to the conclusion that the commissioner was in contempt of the Court order of 31 July 2009. It would therefore appear, prima facie and without any further consideration, that the submission made by counsel, as explained in par 43 above, has merit.

 

[48]       However, when considering the judgment as a whole, the following appears: the structure as indicated in the judgment consists of "background ' then "proceedings in the court a quo" and finally "proceedings on appear. Under the heading" proceedings on appeal' it is stated that the issues to be determined were "the status of the settlement order and whether the commissioner acted wilfully and mala fide in failing to comply with its provisions" (par 12).

 

[49]       It was contended in the appeal, regarding the status of the settlement order, that it did not constitute a direction by the court (as its terms were dictated by the parties) and therefore its breach could not found contempt proceedings. This contention was rejected by the Court and it was concluded that it "had the full force of a court order and nothing precluded the appellant from seeking to enforce it through contempt proceedings as it has done" (par 12 and 14).

 

[50]       The Court then proceeded as follows (in par 15):

 

"The question which then arises is whether the appellant proved that the commissioner's failure to comply with the settlement order amounted to civil contempt of court, beyond a reasonable doubt to secure his committal to prison. An applicant for this type of relief must prove (a) the existence of a court order; (b) service or notice thereof;·(c) non-compliance with the terms of the order; and (d) wilfulness and ma/a tides beyond reasonable doubt. But the respondent bears an evidentiary burden in relation to (d) to adduce evidence to rebut the inference that his non-compliance was not wilful and ma/a fide."

 

[51]       It was thereafter clearly indicated that "requisites (a) to (c) were always common cause". The only question was whether the commissioner had rebutted the evidentiary burden on him in relation to (d) above (par 16). The court ultimately concluded, with reference to the evidence, that the commissioner had failed to explain why he repeatedly failed to comply with the court order of 31 July 2009. It should be pointed out, as we understand the judgment, that non­ compliance with the court order (requirement "c" above) was never in issue. Put differently, it appears that the parties had accepted, without considering the difference between claims submitted before and after 31 July 2009, that there was indeed non-compliance.

 

[52]       We carefully considered counsel's argument with reference to that judgment as well as the judgment itself. We certainly do not wish to disregard or disrespect a judgment of the Supreme Court of Appeal which would be binding on us, not even by a mere mistake. As we understand the judgment, that Court was not called upon to consider and decide whether the order of 31 July 2009 ("POC1" read with "POC2") should be interpreted to also include claims to be submitted after 31 July 2009. Put differently, this does not appear to have been the issue in that appeal. Furthermore, no such analyses or consideration appears from the judgment itself. Such an interpretation and finding can also not be inferred from the ratio decidendi of the judgment, as it was accepted by the Court that non-compliance was common cause (cf Fellner v Minister of the Interior 1954 (4) SA 523 (A) at 537 A-B and 542C-E). The only (remaining) issue was whether the commissioner had rebutted the evidentiary burden on him. In short, the issue to be decided by this court was not considered or decided by the Supreme Court of Appeal in that case, as non-compliance was accepted to be common cause. And we also don't think that a "common cause approach" by the parties in that case, regarding the interpretation of the settlement order, which is a legal question, can be binding on this court.

 

[53]       One should distinguish between "future conduct" (of the commissioner) and "future claims" (to be submitted by the plaintiff) after 31 July 2009. The obligations of the commissioner as set out in the agreement ("POC1" read with "POC2") could obviously only have been be complied with afterwards, or put differently, " in future" , i e after 31 July 2009, with regard to claims which had by then already been submitted. In other words, those obligations to be performed in future (after 31 July 2009) should not be conflated with claims still to be submitted in future (after 31 July 2009).

 

[54]       The important question is this: what is the subject of the commissioner's obligations which he still had to perform after 31 July 2009 in terms of this agreement? Would it only be the claims which by then had already been submitted, or will it also include future claims still to be submitted after that date? This question was not, in our view, put before the Supreme Court of Appeal to consider, neither was it considered, nor decided, as non-compliance with the court order was accepted to be common cause. It is therefore, in our view, still open to us to consider and decide this issue. We have already done so in the belief that we are entitled to do so.

 

[55]       In conclusion: The apparent purpose of this agreement appears to be an attempt to regulate the processing and payment of all claims submitted by the plaintiff up and until 31 July 2009 and also to address all the problems referred to in paragraph 26 above, by means of the structure and system agreed upon, including CD's to be submitted and weekly meetings to be held. In our view the purpose was not to regulate future claims, or claims still to be submitted or claims not yet in existence, after 31 July 2009, for years to come. Put differently, the cut-off date of this agreement regarding the processing and payment of medical accounts and claims in respect thereof, as referred to in the agreement, was 31 July 2009. The agreement was not intended to also regulate the processing and payment of future claims to be submitted after 31 July 2009. Needless to say, such claims could and can still be submitted after 31 July 2009, not in terms of the agreement, but in terms of COIDA, and subject to its provisions, as usual, without the benefit and support of the agreement. The plaintiff is not prevented from doing so.

 

THE DEFENCE OF RES IUDICATA

 

[56]       When considering this argument we take into account that this Court was constituted as a Full Court to sit as a Court of first instance. As correctly pointed out by counsel for the plaintiff, this Court is not a Court of Appeal. When considering the defence of res iudicata we shall also take into account the principles of the stare decisis doctrine.

 

[57]       It was contended on behalf of the plaintiff that this issue is res iudicata between the parties, as it has already been decided in various judgments of this Court, more particularly that of Teffo J, referred to in paragraph 10 above. In addition thereto, it was pointed out that the doctrine of precedent (stare decisis) not only binds lower Courts but also binds Courts of final jurisdiction to their own decisions. These Courts can depart from a previous decision of their own only when satisfied that that decision is clearly wrong (Camps Bav Ratepayers and Residents Association and Another v Harrison and Another 2011 (4) SA 42 (CC) par 28).

 

[58]       In Molaudzi v S 2015 (8) BCLR 904 (CC), par 14, the Constitutional Court defined res iudicata as the legal doctrine that bars continued litigation of the same case, on the same issues, between the same parties. The underlying rationale of the doctrine of res iudicata is to give effect to the finality of judgments (Molaudzi, supra, par 16).

 

[59]       The question to be considered is whether this doctrine should always be applied rigidly? When considering this question the Court in Molaudzi took into account that our Courts have, over time, expressed the view that this doctrine should not be applied rigidly in order to prevent hardship and actual injustice to the parties (par 23). After also taking into account international developments regarding exceptions to the res iudicata doctrine, the Court concluded as follows (par 45):

 

"Where significant or manifest injustice would result should the order be allowed to stand, the doctrine ought to be relaxed in terms of sections 173 and 39(2) of the Constitution in a manner that permits this Court to go beyond the strictures of Rule 29 to revisit its past decisions. This requires rare and exceptional circumstances, where there is no alternative effective remedy. This accords with international approaches to res iudicata. The present case demonstrates exceptional circumstances that cry out for flexibility on the part of this Court in fashioning a remedy to protect the rights of an applicant ... ".

 

[60]       The reference to sections 39(2) and 173 of the Constitution does not apply only to the Constitutional Court. It also applies to the Supreme Court of Appeal and the High Courts. In terms of section 173 of the Constitution each Superior Court is the master of its own process (Molaudzi, supra, par 31). Since res iudicata is a common law principle, it follows that this Court may relax the doctrine if the interests of justice so demand (Molaudzi, supra, par 32). In deciding whether this doctrine should be relaxed in the present matter, we take into account that:

 

(a)          this is a Full Court specifically constituted to consider and determine various issues, including this one of res iudicata;

 

(b)          there are various judgments and orders in this Division with regard to this issue, some supporting the plaintiff and others in favour of the defendants. This is not an ideal situation as it causes confusion and legal uncertainty;

 

(c)          we have already come to the conclusion that this issue should be decided in favour of the defendants, i.e. that the agreement and order ("POC1" and "POC2") were not intended to also regulate the processing and payment of medical accounts submitted after 31 July 2009.

 

[61]       Taking into account the above circumstances (which we think are not the usual), we are of the view that if the doctrine of res iudicata is applied rigidly, it will not only cause a significant injustice to the defendants, but that the exceptional circumstances referred to above, also justify, in the interests of justice, that the doctrine should not be applied rigidly, or blindly, as if it is cast in stone for ever.

 

[62]      Many of the circumstances and principles referred to above, also apply to the doctrine of stare decisis or the doctrine of precedent. In Camps Bav Ratepayers and Residents Association and Another v Harrison and Another, supra, par 28 the Constitutional Court said the following with regard to this doctrine:

 

"The doctrine of precedent not only binds lower Courts but also binds Court of final jurisdiction to their own decisions. These Courts can depart from a previous decision of their own only when satisfied that that decision is clearly wrong. Stare decisis is therefore not simply a matter of respect for Courts of higher authority. It is a manifestation of the rule of law itself, which in tum is a founding value of our Constitution. To deviate from this rule is to invite legal chaos."

 

[63]       According to this dictum it is important to bear in mind the following: First, the reference to "Courts of higher authority" is also applicable in this case. This is a Full Court as opposed to the other Courts in this Division which gave judgments or orders regarding this issue where those Courts were comprised of only a single Judge. Second, Courts can depart from a previous decision of their own, only when satisfied that that decision is clearly wrong. We have already concluded that the agreement and order ("POC1" and "POC2") was not intended to also regulate the processing and payment of medical accounts submitted after 31 July 2009.

 

[64]       Taking into account the analysis, interpretation and our conclusion regarding this issue, we are of the view that all those judgments (including that of Teffo J) which are at variance with this judgment, regarding this issue, are clearly wrong. We say this with due respect to all those Judges who had to deal with those cases, sometimes under difficult circumstances, due to the workload and limited time available in this Division. Those judgments and orders already granted, unfortunately, and in our view, did not take sufficiently into account the circumstances attendant upon the coming into existence of the said agreement ("POC1"), a proper analysis of the factual background referred to above, a proper interpretation of the agreement and the apparent purpose to which it is directed. In the result the defence of res iudicata and stare decisis, as an answer to this special plea, cannot be upheld.

 

SPECIAL PLEA NO 2: Have these proceedings being instituted prematurely?

 

[65]       The plaintiff contends that it is not mandatory or a jurisdictional prerequisite to the plaintiff proceeding with its actions for payment and that non ­ compliance with the so-called "W.C /.20" procedure as reflected in the applicable regulations, does not constitute a bar to the plaintiff so proceeding.

 

[66]       The defendants contend that it is mandatory and a jurisdictional prerequisite to the plaintiff proceeding with its actions and that non-compliance with the "W.Cl.20" procedure constitutes a bar to the plaintiff so proceeding.

 

[67]       It is common cause between the parties that the plaintiff did not follow the so-called "W.Cl.20" procedure in respect of the accounts reflected in annexure "POC3" to each of the summonses in these matters. Government Gazette No 31320 of 22 August 2008, issued in terms of section 97 of COIDA, regulates, inter alia, the billing procedure. It provides as follows in paragraphs 3 and 4 thereof:

 

"3.    If accounts are still outstanding after 60 days following submission, the service provider should complete an enquiry form, W.Cl.20, and submit it once to the Labour Centre ...

 

4.            If an account has been partially paid with no reason indicated on the remittance advice, a duplicate account with the unpaid services clearly marked can be submitted to the Labour Centre, accompanied by a W.Cl.20 form."

 

[68]       The heading of the W.Cl.20 form reads "ENQUIRY RE / UNPAID MEDICAL / CHEMIST ACCOUNT". It appears that this form and procedure in connection therewith have been developed for use when there is an enquiry regarding unpaid medical accounts arising from claims submitted under COIDA. Taking into account that the defendants are dealing with thousands of medical accounts and claims in connection therewith daily, the apparent purpose of this procedure is to avoid thousands of telephone calls regarding unpaid accounts. In short, if there is an enquiry about unpaid accounts, the service provider must follow this procedure as prescribed in the Government Gazette.

 

[69]       There is no indication that this regulation is intended to regulate and prescribe the procedure to be followed regarding the institution of legal proceedings. If that was the intention, one would have expected the Legislature to clearly state that no legal proceedings may be instituted unless the procedure regarding form W.Cl.20 has been followed. There is no such suggestion. The purpose of this procedure is to regulate enquiries about unpaid accounts and not to regulate the procedure regarding the institution of legal proceedings. This special plea is without any merit and should therefore be dismissed.

 

SPECIAL PLEA NO 3: Does section 32 of COIDA prohibit the cession of medical claims the plaintiff is relying on?

 

[70]       The plaintiff contends that, taking into account the context of this section, it does not prohibit the cession of medical aid accounts as relied upon by the plaintiff, whereas the defendants argue that it does prohibit such cessions as the wording thereof is clear. It was submitted by the amicus curiae that the mischief this section seeks to cure is to prevent workers ceding their claims for compensation under COIDA. It is common cause between the parties that the plaintiff concluded cession agreements with the medical service providers reflected in annexure "POC5" to each summons in terms whereof the medical accounts listed in annexure "POC3", were ceded to the plaintiff.

 

[71]       Chapter 1 of COIDA deals with the interpretation of the Act. Section .1 provides that, in this Act, unless the context indicates otherwise, "compensation" means "compensation in terms of this Act and, where applicable, medical aid or payments of the cost of such medical aid". It also states that "this Act" includes the Schedules thereto and any regulation.

 

[72]       The relevant part of the definition of "employee" reads as follows:

 

"Means a person who has entered into or works under a contract of service or of apprenticeship or learnership, with an employer, whether the contract is express or implied, oral or in writing ...".

 

[73]       In this section "medical aid" means "medical, surgical or hospital treatment, skilled nursing services, any medical treatment approved by the Director-General, the supply and repair of any prosthesis or any device necessitated by disablement , and ambulance services where , in the opinion of the Director-General, they were essential".

 

[74]       Section 16 provides for the application of the compensation fund. It provides in subsection (1)(a) as follows:

 

"1.       The compensation fund shall, subject to the provisions of this Act, be under the control of the Director-Genera/ and its monies shall be applied by the Director-General to -

 

(a)          the payment of compensation, the cost of medical aid or other pecuniary benefits to or on behalf of or in respect of employees in terms of this Act where no other person is liable for such payment."

 

[75]       Section 29 provides for the liability for payment of compensation. It provides that:

 

"If an employee is entitled to compensation in terms of this Act, the Director-General or the employer individually liable or the mutual association concerned, as the case may be, shall be liable for the payment of such compensation."

 

[76]       Section 32 prohibits the alienation or reduction of compensation. Subsection (1) provides as follows:

 

"(1)      Notwithstanding anything to the contrary in any other law contained, compensation shall not -

 

(a)         be ceded or pledged ;

 

(b)         be capable of attachment or any form of execution under a judgment or order of a Court of law;

 

(c)        ...,

 

(d)       be set-off against any debt of the person entitled to the compensation."

 

[77]       Section 33 provides that cession or relinquishment of benefits shall be void. It provides that:

 

''Any provision of an agreement existing at the commencement of this Act or concluded thereafter in terms of which an employee cedes or purports to cede or relinquishes or purports to relinquish any right to benefits in terms of this Act, shall be void."

 

 

[78]       Claims for compensation are dealt with in section 43. Subsection (1)(a) reads as follows:

 

"(1)      (a)       A claim for compensation in terms of this Act shall be lodged by or on behalf of the claimant in the prescribed manner with the Commissioner or the employer or the mutual association concerned, as the case may be, within 12 months after the date of the accident or, in the case of death, within 12 months after the date of death."

 

[79]       Section 54 makes provision for the payment of compensation to dependants (including the widow) if the employee dies.

 

[80]       Section 73 regulates the payment of medical expenses. It provides as follows:

 

"(1)      The Director-General or the employer individually liable or mutual association concerned, as the case may be, shall for a period of not more than two years from the date of an accident or the commencement of a disease referred to in section 65(1) pay the reasonable cost incurred by or on behalf of an employee in respect of medical aid necessitated by such accident or disease .

 

(2)       If, in the opinion of the Director-General, further medical aid in addition to that referred to in subsection (1) will reduce the disablement from which the employee is suffering, he may pay the cost incurred in respect of such further aid or direct the employer individually liable or the mutual association concerned, as the case may be, to pay it."

 

[81]       Fees payable for medical aid are provided for in section 76. Subsection (1) thereof provides as follows:

 

"(1) Subject to the provisions of this section, the cost of medical aid shall be calculated in accordance with a tariff of fees determined by the Director-General."

 

[82]       In Government Gazette No 39906 of 7 April 2016 provision is made for the employee to freely choose his own service provider, e.g. doctor, pharmacy, physiotherapist, hospital, etc. It also regulates the processing of claims.

 

[83]       The dictum referred to in paragraph 18 of Natal Joint Municipal Pension Fund, supra (par 22 above) is also applicable to legislation. The interpretation thereof necessitates that due consideration must be given to the language used, the context in which the provision appears and the apparent purpose to which it is directed. This means that section 32 must not be read in isolation when considering its language and the apparent purpose to which it is directed.

 

[84]       We shall start by considering the language. Section 32 provides that "compensation" shall not be ceded or pledged. According to section 1, "compensation" includes, " where applicable", medical aid or payments of the cost of such medical aid. It would therefore appear, without taking into account the context and the apparent purpose of this section, that also the cession of the payments of the cost of medical aid is prohibited. However, this is not the end of this exercise.

 

[85]       The context within which this provision appears, should also be taken into account. According to its long title the purpose of COIDA is to provide for "compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases and to provide for matters connected therewith".

 

[86]       Generally speaking, it appears that there are three categories of persons who would be entitled to compensation, i.e. the employee, his dependants (in case of his death) and the service provider of medical aid. The focus of the Act appears to be the payment of compensation to an employee or his dependants, whereas the payment to service providers for medical aid that was rendered, seems to be one of the "matters connected therewith ". This apparent differentiation as far as the focus is concerned, seems to indicate that the Legislature intends to protect the interests of the employee for disablement and that of his dependants in the case of death, whereas those concerns (disablement and death) are clearly not applicable to the service provider.

 

[87]       Section 32 should also be read with section 33. Section 33 provides that cession of rights to benefits by an employee shall be void. What is the difference between section 32 and section 33? Section 33 only refers to "an employee" and not also to his dependants in the case of death. Furthermore, section 33 does not give the additional protection against attachment, execution and set-off as section 32 specifically provides for. Section 32 therefore not only protects the employee, but also his dependants regarding cession, attachment, execution and set-off.

 

[88]       Taking into account the above considerations, what then is the apparent purpose to which section 32 is directed? The obvious answer seems to be that the Legislature intended to protect the interests of the employee and his dependants in the case of compensation to be paid for disablement and death. As pointed out above, these concerns (disablement and death) are not applicable to the service provider. There is no reason why the interests of the service provider, save for the payment of his or her account, should also be taken into account. There is also no apparent or indicated reason why section 32 should then also be applicable to service providers. In short, the purpose of section 32, in our view, appears to prevent employees and their dependants ceding their claims for compensation under COIDA and to protect them against attachment, execution and set-off as referred to in section 32. There is, in our view, no need or any reason to provide the same protection to a service provider, i.e. a hospital, a pharmacy, a doctor, etc.

 

[89]       In conclusion: Taking into account all the above considerations, as well as the qualification "unless the context indicates otherwise" in section 1, we are of the view that section 32 should be interpreted to include a reference to the employee and his dependants, but not also a reference to the service provider. The overall context of this section indicates that such an interpretation is to be preferred as one that leads to a sensible meaning to support the apparent purpose thereof. In the result the special plea with regard to this issue should be dismissed.

 

SPECIAL PLEA NO 4: Was it necessary to comply with sections 1 and 2 of the State Liability Act 20 of 1957?

 

[90]       The crisp issue between the parties is whether the Minister of the Department of Employment and Labour should have been joined? It is common cause that the Minister has not been joined, only the Compensation Commissioner and Director-General of the Department of Labour of the National Government.

 

[91]       The plaintiff contends that section 1 of the State Liability Act does not provide for liability arising from statutory provisions such as those of COIDA. It evidently relates only to common law liability. It was argued on behalf of the defendants that in terms of section 2(1) of the State Liability Act the Executive Authority of the Department concerned, i.e. the Minister, must be cited as the nominal defendant or respondent. The plaintiff has failed to do this. Therefore, so it is submitted, the plaintiff has failed to comply with the provisions of the State Liability Act.

 

[92]       It is common cause that the plaintiff's claims against the defendants are for payment of medical accounts rendered pursuant to COIDA which it had factored. It is also not in dispute that the plaintiff has failed to comply with the aforesaid sections in that it has not joined the Minister of the Department of Employment and Labour to these proceedings.

 

[93]       According to the Long Title of the State Liability Act the purpose of this Act is "to consolidate the law relating to the liability of the State in respect of Acts of its servants". Section 1 thereof deals with claims against the State recognisable in any competent Court. It provides as follows:

 

"1.       Any claim against the State which would, if that claim had arisen against a person, be the ground of an action in any competent Court, shall be recognisable by such court, whether the claim arises out of any contract lawfully entered into on behalf of the State or out of any wrong committed by any servant of the State acting in his capacity and within the scope of his authority as such servant."

 

[94]       Section 2 thereof is concerned with proceedings to be taken against the Executive Authority of the Department concerned. The relevant part thereof reads as follows:

 

"(1) In any action or other proceedings instituted against a department, the executive authority of the department concerned must be cited as nominal defendant or respondent."

 

[95]       Section 4A deals with the interpretation of the Act. It provides that "department" means a national or provincial department. The "executive authority" in relation to a national department, means "the Cabinet Member who is accountable to Parliament for that department" and with regard to a provincial department, it means the "Member of the Executive Council of a province who is accountable to the provincial Legislature for that department".

 

[96]       The law relating to interpretation as stated in paragraph 18 of Natal Joint Municipal Pension Fund, supra (par 22 above) is also applicable to this legislation. As pointed out above, the interpretation thereof necessitates that due consideration must be given to the language .used, the context in which the provision appears and the apparent purpose to which it is directed. This means that the individual sections must not be read in isolation when considering its language and the apparent purpose to which it is directed.

 

[97]       We shall start by considering the language of section 1 of the State Liability Act. The words "any claim" appear to have a wide application. The words "if that claim had arisen against a person", read with the words "shall be recognisable", appear to be a reference to jurisdiction or the capacity of such a court to adjudicate any such claim as if it had arisen against a person.

 

[98]       The reference to a claim arising out of any contract or out of any wrong committed by any servant of the State, appears not to be a limitation regarding the kind of claims which shall be recognisable, but rather to indicate that those kind of claims are also included in the words "any claim". If a different interpretation were to be followed (as suggested by counsel for the plaintiff) it would mean that not all claims against the State, e.g. claims arising from statutory provisions such as COIDA, "shall be recognisable " by a court, or will be regulated by this Act. There is no indication that such a differentiation should be made, or that some of the claims against the State should fall outside the ambit of this legislation, more particularly so if the purpose and ratio of the Act is taken into account, i.e. "to consolidate the law relating to the liability" of the State in respect of acts of its servants.

 

[99]       Section 2(1) refers to "any action or other proceedings instituted against a department". These words appear to also have a wide application without any qualification regarding the kind of action or other proceedings. Furthermore, this section stipulates that the executive authority of the department concerned "must" be cited as a nominal defendant or respondent. This provision appears to be peremptory and not merely directory (cf Bezuidenhout v AA Mutual Insurance Association Ltd 1978 (1) SA 703 (A) at 709H with regard to the word "shall" also used in other legislation).

 

[100]    In Javiva v Member of the Executive Council for Welfare, Eastern Cape, and Another 2004 (2) SA 611 (SCA) par 5 the following was said with regard to section 2 of the State Liability Act:

 

"A litigant brings a national or provincial department before Court by citing the political head of the department in a representative capacity. In the case of a department of the national government, this would be the responsible Minister. In the case of a provincial department is the responsible member of the Executive Council. That is what s 2 of the State Liability Act 20 of 1957 provides. "

 

[101]    Counsel for the plaintiff also referred us to Chagi and Others v Special Investigation Unit 2009 (C) BCLR 227 (CC) where it was decided that section 2 of the State Liability Act, read with section 13 of the Special Investigating Units and Special Tribunals Act No 74 of 1996 ("SIU Act"), precludes the Minister of Justice from being cited as a nominal defendant. Therefore, so it was suggested by counsel, that the defendants are wrong in their view that the Minister concerned should have been joined in these proceedings.

 

[102]    In that case the Constitutional Court took into account the provisions of section 13(2) of the SIU Act which provides that the reference to "the Minister of the Department concerned" in the State Liability Act shall be construed as a reference to the Head of the Special Investigation Unit concerned (par 20). It is for this reason that the Court then concluded that the SIU Act precludes the Minister of Justice from being cited as a nominal defendant "in a case in which a special investigation unit is being sued" (par 21).

 

[103]    The SIU Act is not applicable in this matter (neither any other Act with a similar provision, of which we are aware of) and therefore the Chagi case upon which counsel for the plaintiff relies, is clearly distinguishable from the facts of this matter and is therefore not apposite.

 

[104]    Taking into account the long title of this Act, the reference in section 1 to "any claim" and the reference in section 2(1) to "any action or other proceedings", it appears that the Legislature intended to cast the net as wide as possible by including not only all claims against the State, but also any actions or other proceedings instituted against a department. The apparent purpose is not to differentiate between different kinds of claims, but rather to consolidate the law relating to all claims against the State and the liability of the State in connection therewith. This interpretation seems to be a sensible one without crossing the divide between interpretation and legislation.

 

[105]    In the result and taking into account all the above considerations, we are of the view that the Minister concerned should have been joined in these proceedings as a nominal defendant. The special plea raised by the defendants should therefore be upheld.

 

SPECIAL PLEA NO 5: Are sections 3 and 5(4) of the Legal Proceedings against Certain Organs of State Act No 40 of 2002 applicable to these proceedings?

 

[106]    As indicated above (par 15) this special plea has been abandoned and it was also confirmed by counsel that the defendants will not raise this defence again. It is therefore not necessary for us to consider it.

 

SPECIAL PLEA NO 6: Has the plaintiff failed to comply with Uniform Rule 18(4)?

 

[107]    The plaintiff contends that it complied with Uniform Rule 18(4) in that there is sufficient particularity given in the particulars of claim in respect of each claim pleaded to enable the defendants to answer thereto. The defendants contend that the plaintiff has failed to comply with this Rule, in that there is insufficient particularity given in the particulars of claim in respect of each claim pleaded.

 

[108]    The essence of this special plea is that annexure "POC3" to the particulars of claim contains a list of claims, but not the invoices relating to services which were rendered, by different service providers at different dates, times, and places.

 

[109]    In support of this defence the defendants rely on the unreported judgment of Collis J in Compensation Solutions (Pty) Ltd v The Compensation Commissioner and Another (Case No 47267/2018 delivered on 26 February 2019) where the learned Judge said the following:

 

"Ex facie annexures 'POC1' and 'POC3' and for reasons alluded to supra; I am not persuaded that the plaintiff has established its claim clearly on the papers and that its pleadings are furthermore, technically correct. Consequently, I find the point in limine of non-compliance with Rule 18(4) has merit."

 

[110]   In answer thereto counsel for the plaintiff submitted that annexure "POC3" gives ample particularity to each claim - sufficient to enable the respondents (defendants) to plead thereto. He pointed out that this has been confirmed, albeit by necessary implication, by other Judges of this Division. Reference was made to, inter alia, judgments and/or orders granted by Mosopa AJ, GP42841/2018 dated 14 December 2018 and Coetzee AJ, GP84089/2018 dated 29 August 2019.

 

[111]    Rule 18(4) provides as follows:

 

"Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto."

 

[112]    In their commentary on this sub-Rule, the learned authors of Superior Court Practice, 2^nd Ed, Vol 2 state inter alia the following (at 01-232 and further):

 

"A pleading should not include extensive excerpts from and references to other documents ... Facts and not evidence must be pleaded, and the sub-Rule makes it clear that material facts only should be pleaded. The distinction between facta probanda (the facts that had to be proved) and facta probantia (the facts that would prove those facts) should be kept in mind."

 

[113]    The words "with sufficient particularity" to enable the opposite party to reply thereto should also be understood in its proper context. The same authors, Superior Court Practice, supra, 01-234 give the following explanation:

 

"There is no exhaustive list to determine whether a pleading contains 'sufficient particularity' for the purposes of this sub-Rule but it is essentially an issue of fact: a pleading contains sufficient particularity if it identifies and defines the issues in such a way that it enables the opposite party to know what they are.

 

The degree of particularity will depend upon the circumstances of each case. Thus, for example, greater particularity will be required where claims are based upon the provisions of a detailed and complex contract, such as a construction contract in which numerous clauses confer the right to additional payment in differing circumstances. In such cases a pleader may be required to identified explicitly those clauses of the contract on which the cause of action is built."

 

[114]    In Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa, 5^th Ed, Vol 1, p 565 the learned authors point out, when considering the requirement of ''particularity", the following:

 

“A plaintiff acts in breach of this requirement when the particulars of claim include extensive extracts from and references to other documents and sources, or when, despite the particulars containing concise statements of fact, those statements are not material to any clearly disclosed cause of action. Similarly eight medical reports running to 52 pages annexed to a particulars of claim could not be described as 'clear and concise'."

 

[115]    In paragraph 9 in each of the particulars of claim reference is made to annexure "POC3". This is a document containing particulars of cession agreements concluded between the plaintiff and each medical service provider. It has been pleaded as follows (insofar it is relevant):

 

schedule, prepared in a format as prescribed by the first defendant , containing all the detail required by the first defendant to identify each account and affect payment, is attached hereto as annexure 'POC3 ', and which inter alia shows and identifies the following:

 

9.1         Medical accounts that have been processed and validated by the defendants, but not paid ... in respect of which the defendant has accepted liability ;

 

9.2         The validated practice number as issued by the Board of Health Funders ... to each medical service provider as reflected on the records .. . as well as the registered name of each medical service provider;

 

9.3         The case or invoice number in each instance;

 

9.4         The name of the employee in respect of whose accepted claim the medical services were rendered and medical accounts issued;

 

9.5         The accepted claim number as issued by the first defendant in respect of each claim;

 

9.6         The dates of injury and dates of first and last treatment;

 

9.7         The face value of each account as at time of submission;

 

9.8         Where applicable, the date on which a claim older than two years was officially reopened by the first defendant to allow further medical treatment ...;

 

9.9         The unique TRANSEQNO (transaction sequence number) allocated by the plaintiff to each tariff line item in an account ...;

 

9.10      The date on which liability in terms of the COID Act for each claim was accepted by the first defendant;

 

9.11      The date on which the plaintiff submitted each account to the first defendant;

 

9.12      The balance outstanding on each account listed in annexure 'POC3' as at 3 August 2020 after crediting all identifiable payments received from the first defendant prior to the issue of summons;

 

9.13      The aggregate amount currently owing by the defendants to the plaintiff on all the accounts constituting annexure 'POC3', such aggregate amount owing being R16,584,476.55".

 

[116]    In paragraph 11 of each of the particulars of claim it is pleaded that in respect of each medical service provider reflected in annexure "POC3", the plaintiff concluded written agreement in terms whereof those medical service providers ceded all right, title and interest in and to the accounts to the plaintiff. Reference is then made to annexure "POC6", an extract and example of the "portion of such agreement that the plaintiff relies upon of one such agreement, the remaining agreements and relevant portions relied upon being mutatis mutandis similar as regards the cession clauses, and which are too voluminous to attach hereto".

 

[117]    When annexure "POC3" is analysed, it is clear that it contains hundreds, if not thousands, of entries. Each entry consists of various columns as pleaded in the particulars of claim.

 

[118]    Annexure "POC6" is an example of one of the cession agreements. It contains various clauses to evidence the cession as agreed between the parties concerned. It consists of three pages.

 

[119]    In support of this special plea, counsel for the defendants submitted the following:

 

"The pleading as a whole is thus excipiable and/or is non ­ compliant with the Rules of Court and for purposes of Rule 30A. Each and every claim as contained in 'POC3' ought to be pleaded properly, supported by a copy of the cession agreement concluded between the service provider and the plaintiff and (should) provide details, supported by an invoice/s of the injury and treatment , as would follow in a traditional pleading. The lumping together of claims and failure to attach specific documents providing the content thereto defeats the purpose of Rule 18(4)."

 

[120]    There are various problems with this submission. We mention only a few: First, if each and every claim as contained in "POC3" were to be pleaded properly, in addition to all the particulars already provided, it would result in a particulars of claim consisting of not hundreds, but thousands of pages. Second, to provide details, supported by an invoice of the injury and treatment received, would certainly result in a pleading which includes "extensive excerpts from and references to other documents" and which would certainly not pass the test of "clear and concise". Third, an example of the cession agreement concluded with each service provider upon which the plaintiff relies, has already been attached as annexure "POC6". To insist that all the other cession agreements, similar to this one, should also be attached is totally unnecessary and unreasonable.

 

[121]    Taking into account the particulars pleaded in paragraph 9 of each of the particulars of claim, read with that contained in annexure "POC3" and a copy of one of the cession agreements, we are of the view that these pleadings contain sufficient particularity to enable the defendants to plead thereto. To insist on more particularity at this stage would be tantamount to require the plaintiff to also plead evidence instead of only facts. Furthermore, more particularity can be obtained at a later stage by means of discovery or a request for further particulars on trial.

 

[122]    In the result we are of the view that there is no merit in this special plea and that it should be dismissed.

 

SPECIAL PLEA NO 7: Was it necessary to attach each cession agreement to the particulars of claim?

 

[123]    Plaintiff contends that it has fully complied with the requirements of Rule 18(6) as regards the pleading of the cession agreements and the failure to also attach a copy of each cession agreement referred to, does not constitute a special defence. The defendants argue that the failure to attach each cession agreement is a special defence which denudes the plaintiff of locus standi in these matters. We have already dealt with some of these issues above, but will nevertheless also consider this special plea properly.

 

[124]    Rule 18(6) reads as follows:

 

“A party who in his pleading relies upon a contract shall state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written a true copy thereof or of the part relied on in the pleading shall be annexed to the pleading."

 

[125]    It has been pleaded that the plaintiff took cession in terms of written agreements entered into between the plaintiff and the service providers (par 3 of the particulars of claim). In paragraph 5 of the particulars of claim reference is made to annexure "POC5". This annexure sets out particulars regarding when, where and by whom each cession agreement was signed. This includes particulars of persons who acted in a representative capacity.

 

[126]    It is clear from the particulars of claim (par 3) that the plaintiff relies upon approximately 1 800 written cession agreements. Annexure "POC6" is an extract and example of the portion of the cession agreement relied upon by the plaintiff. It is also pleaded (par 11) that copies of all the cession agreements (approximately 1 800) have not been attached as they "are too voluminous". Each cession agreement consists of three pages which means that the annexures in this regard would amount to approximately 5 400 pages if all of them were to be attached.

 

[127]    It has been pleaded (in par 11.2) that all these agreements are "mutatis mutandis similar as regards the cession clauses". If that is so, and taking into account a copy of one of the cession agreements ("POC6") as well as the particulars already set out in annexure "POC5" (such as names, places and dates with regard to all these agreements), why should all the other agreements also be attached? There is, in our view, no need to do so under the present circumstances. Taking into account all the facts and considerations referred to above, we are of the view that there was substantial compliance (if not complete compliance) with the provisions of Rule 18(6). We therefore conclude that there is no merit in this special plea, including the attack on the plaintiff's locus standi that was linked thereto.

 

SPECIAL PLEA NO 8: Are the claims contained in annexure "POC3" individual claims falling within the jurisdiction of the Magistrate's Court which should not have been instituted in the High Court?

 

[128]    Plaintiff contends that these claims form the subject matter of the plaintiff's claim in each summons and, even if they were individual claims falling within the jurisdiction of the Magistrate's Court, that those claims would not prevent the High Court to hear these matters. The defendants contend that these claims are in fact individual claims falling within the jurisdiction of the Magistrate's Court and therefore the jurisdiction of the High Court to hear these matters, is consequently usurped.

 

[129]    I do not think it is necessary to consider each and every one of these (approximately 1 800) claims. The essence of this special plea is that there are claims falling within the Magistrate's Court jurisdiction which should not have been instituted in the High Court. We shall assume (without deciding) that many of those claims which have now been instituted in the High Court, fall within the jurisdiction of the Magistrate's Court.

 

[130]    In support of his argument, counsel for the defendants referred us to the (consolidated) matters in Nedbank Limited v Thobeiane (Case No 84041/2015) which is another judgment by a Full Court of this Division. In that case it was ordered (par 96) that:

 

"To promote access to justice as from the 2 February 2019 civil actions and/or applications, where the monetary value claimed is within the jurisdiction of the Magistrate's Courts should be instituted in the Magistrate's Court having the jurisdiction, unless the High Court has granted leave to hear the matter in the High Court."

 

[131]    After argument had been heard and judgment was reserved, the plaintiff's attorney addressed a letter to us in which he referred to further case law in an attempt to "assist the Court". The attorney for the defendants was included in this communication.

 

[132]    We immediately informed the legal representatives of the parties what the ethical duty of a legal representative is under these circumstances and requested that the parties must comply therewith. Shortly thereafter we were informed that counsel for the plaintiff had a discussion with counsel for the defendants who indicated that he is in agreement that the cases referred to, will be of assistance to the Court. It was then accepted that the issue had been resolved between counsel and that we could take notice of the cases referred to.

 

[133]    One of the cases referred to is a judgment by the Supreme Court of Appeal in the matter of The Standard of SA Ltd and Others v Thobejane and Others (38/2019 & 47/2019 [2021] ZASCA 92 (25 June 2021). In that judgment it was pointed out that in terms of section 169(1) of the Constitution the High Court is authorised to decide all matters other than those reserved for other Courts. No monetary gap exists in respect of the High Court which is an indication of its universal scope of authority, subject only to section 169 (par 16). It was also emphasised that the concurrency of jurisdiction in circumstances in which a claim justiciable in a Magistrate's Court has been brought in a High Court, has been recognised for over a century (par 26).

 

[134]    It was then decided that the decision in Thobeiane (supra) cannot be sustained (par 62). The order granted with regard to the Thobeiane appeal is that "the High Court is obliged to entertain matters that fall within the jurisdiction of a Magistrate's Court because the High Court has concurrent jurisdiction."

 

[135]    That is the short answer to this special plea. In the result it should be dismissed.

 

COSTS

 

[136]    That brings us to the final issue of costs. In some of the special pleas an order will be granted in favour of the plaintiff and in others an order will be given in favour of the defendants. Who is then the winner and who is the loser in this litigation? The answer is both of the litigants. The principle that costs should follow the result is therefore difficult to apply in these proceedings.

 

[137]    We also take into account the special nature of these proceedings. It has been referred to this Court by the Judge President in terms of a Directive to hear, determine and resolve the legal issues between the parties and to secure legal certainty in this Division. We appreciate the contribution made by all the parties in this regard, also that of the amicus curiae. Taking into account all these considerations, we are of the view that no order as to costs should be made.

 

ORDER

 

In the result we make the following order:

 

1.            Special plea No 1, as referred to in paragraph [13](a) above, is upheld and it is declared that annexures "POC1" and "POC2" are not to regulate the processing and payment of claims to be submitted after 31 July 2009;

 

2.            Special plea No 2 as referred to in paragraph [13](b) above, is dismissed;

 

3.            Special plea No 3 as referred to in paragraph [13](c) above , is dismissed and it is declared that section 32 of the Compensation for Occupational Injuries and Diseases Act, No 130 of 1993 as amended, does not prohibit a cession agreement entered into between the plaintiff and service providers of medical aid referred to in the said Act;

 

4.            Special plea No 4 as referred to in paragraph [13](d) above is upheld;

 

5.            Special plea No 5 as referred to in paragraph [13](e) above has been abandoned and therefore no order is made;

 

6.            Special plea No 6 as referred to in paragraph [13](f) above is dismissed;

 

7.            Special plea No 7 as referred to in paragraph [13](g) above is dismissed;

 

8.            Special plea No 8 as referred to in paragraph [13](h) above is dismissed;

 

9.            There shall be no order as to costs.

 

 

D S FOURIE

J UDGEOF THE HIGH COURT

.PRETORIA

 

N MALI

JUDGE OF THE HIGH COURT

PRETORIA

 

D MAKHOBA

JUDGE OF THE HIGH COURT

PRETORIA

 

 

APPEARANCES:

 

Counsel for the plaintiff:               Adv P G Robinson SC

                                                              Adv- C J Welgemoed

Instructed by:                                   VDT Attorneys

                                                              PRETORIA

 

Counsel for the defendants:             Adv N A Cassim

                                                              SC Adv M M Mojapelo

                                                              Adv S Freese

                                                              Adv W N Mothibe

 

Instructed by:                                  The State Attorney

                                                              PRETORlA

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